United States v. Raymond

United States Court of Appeals
For the First Circuit

No. 10-2346

UNITED STATES OF AMERICA,

Appellee,

v.

JAMES RAYMOND,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Howard, Ripple* and Selya,
Circuit Judges.

Richard L. Hartley, with whom Law Office of Richard Hartley
was on brief, for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Richard W. Murphy, Attorney for the United States, acting
under authority conferred by 28 U.S.C. § 515, and Thomas E.
Delahanty II, United States Attorney, were on brief, for appellee.

October 10, 2012

*
Of the Seventh Circuit, sitting by designation.
 SELYA, Circuit Judge. A federal grand jury in the

District of Maine handed up an indictment that charged an

elementary-school music teacher with two counts of transporting a

minor with intent to engage in criminal sexual activity. See 18

U.S.C. § 2423(a). Following a bench trial, the district court

found the teacher guilty and imposed a twelve-year incarcerative

sentence. The teacher appeals. After careful consideration of

this tawdry tapestry, we affirm.

I. BACKGROUND

Because the conviction in this case followed a bench

trial, we rehearse the facts as supportably found by the district

court. See United States v. Raymond, 710 F. Supp. 2d 161, 162-64

(D. Me. 2010).

From 2003 to 2007, defendant-appellant James Raymond, a

29-year-old man, toiled as an elementary-school music teacher in

Auburn, Maine. On two different occasions in July and August of

2007, he invited an eleven-year-old pupil and her nine-year-old

sister to Canobie Lake Park, an amusement park in Salem, New

Hampshire. On each occasion he drove the girls, unaccompanied by

any other adult, from their family's home in Maine to the park.

The district court found that at least one of the

defendant's motives for these trips was "sexual contact with the

eleven-year-old if the opportunity should arise." Id. at 162-63.

During the July trip, the defendant touched the eleven-year-old's

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buttocks three times. Id. at 162. He apologized each time that

this occurred. During the August trip, the defendant touched the

eleven-year-old's buttocks once again. Id. at 163. The district

court determined that the buttocks-touching incidents were

intentional and carried out for the purpose of sexual

gratification. Id. at 162-64.

In adjudging the defendant guilty, the district court

attached decretory significance to four pieces of evidence: the

victim's testimony; other students' testimony about a June 2007

school-sponsored bus trip to Canobie Lake during which they

observed the defendant rubbing his hand on the victim's legs; the

testimony of another young girl who stated that the defendant

"touched her buttocks under her skirt at school" in October 2007;1

and a videotaped interview with police in which the defendant

discussed "his physical urge to touch young girls' buttocks" and

his habit of "masturbating once or twice a week about kids." Id.

at 163 (internal quotation marks omitted). With respect to the

June 2007 bus trip, the court also noted that the victim herself

testified that the defendant "put his hand inside her shirt on her

belly and . . . on the back of her leg toward her butt." Id.

Following the defendant's conviction, the probation

department prepared a presentence investigation report (PSI

1
This conduct ultimately led to a state-court conviction for
two counts of unlawful sexual touching and three counts of assault.

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Report). The final version of the PSI Report set the advisory

guideline sentencing range (GSR) at 262 to 327 months. The

district court imposed a below-the-range prison sentence of twelve

years. This timely appeal ensued.

II. ANALYSIS

In this venue, the defendant advances three claims of

error. We discuss these claims sequentially.

A. Rule 404(b) Evidence.

The defendant argues that the district court improperly

admitted evidence of both his contact with the victim during the

June 2007 bus trip and his inappropriate conduct with another young

girl in October of that year.2 The admission of both of these

pieces of evidence implicates Federal Rule of Evidence 404(b) and

engenders review for abuse of discretion. United States v.

Varoudakis, 233 F.3d 113, 118 (1st Cir. 2000).

At the time of the defendant's trial in 2010, Rule 404(b)

provided:3

Evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a
person in order to show action in conformity
therewith. It may, however, be admissible for

2
Although the defendant's brief extends this argument to
testimony that was admitted concerning yet another young girl, the
district court did not rely on any such testimony in adjudicating
the defendant's guilt. We limit our discussion accordingly.
3
Rule 404(b) was amended effective December 1, 2011. The
changes are entirely stylistic. See Fed. R. Evid. 404 advisory
committee's note.

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 other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident . . . .

The admission of prior bad acts evidence in this case fits within

the confines of Rule 404(b). We explain briefly.

The statute of conviction provides in relevant part:

A person who knowingly transports an
individual who has not attained the age of 18
years in interstate . . . commerce, . . . with
intent that the individual engage . . . in any
sexual activity for which any person can be
charged with a criminal offense, shall be
[punished as provided by law].

18 U.S.C. § 2423(a). Under this statute, the government does not

need to prove an exclusive intent to engage in the proscribed

activity. It suffices if such an intent is one of the purposes of

the interstate transportation. United States v. Ellis, 935 F.2d

385, 390 (1st Cir. 1991).

In the case at hand, the district court found that the

defendant's activities were chargeable under both New Hampshire law

and Maine law. See Raymond, 710 F. Supp. 2d at 166-67 (citing N.H.

Rev. Stat. Ann. §§ 632-A:3(III), 632-A:1(IV) and Me. Rev. Stat.

Ann. tit. 17-A, §§ 260(1)(C), 251(1)(G)). Moreover, there was no

question that the trips with the victim and her younger sister

actually occurred; the defendant conceded as much. The pivotal

issue, then, was the defendant's intent.

With this in mind, the government asked the court in a

pretrial motion, see Fed. R. Evid. 404(b) (mandating advance notice

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of the government's intention to offer Rule 404(b) evidence in a

criminal case), for leave to present Rule 404(b) evidence

(including the evidence about which the defendant complains on

appeal). The government maintained that this evidence tended to

show the defendant's intent to engage in unlawful sexual activity

during the July and August 2007 trips.

The defendant opposed this proffer. The court overruled

the defendant's objection in relevant part and authorized the

government to offer the testimony challenged on appeal. It is this

ruling that the defendant now assails.

There is, however, a threshold question. The government

insists that the defendant failed to preserve his right to

challenge this evidence on appeal because he did not renew at trial

his objection to its admissibility. We addressed a similar

question in United States v. Griffin, 818 F.2d 97 (1st Cir. 1987).

There, we concluded that, in order to preserve a challenge to an

evidentiary ruling for appeal, "a party must obtain the order

admitting or excluding the controversial evidence in the actual

setting of the trial," even if a conditional pretrial ruling was

previously made. Id. at 105. We reached this conclusion by

analogy to Luce v. United States, 469 U.S. 38 (1984), in which the

Supreme Court held that "to raise and preserve for review [a] claim

of improper impeachment with a prior conviction, a defendant must

testify" at trial, notwithstanding an earlier in limine ruling.

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Id. at 43. Griffin is still good law: "[i]t is settled in this

circuit that, when the district court tentatively denies a pretrial

motion in limine, or temporizes on it, the party objecting to the

preliminary in limine determination must renew his objection during

the trial, and the failure to do so forfeits any objection."

United States v. Noah, 130 F.3d 490, 496 (1st Cir. 1997); accord

United States v. Joost, 133 F.3d 125, 129 (1st Cir. 1998).4

In this instance, the defendant has eschewed any response

to the government's argument that the pretrial ruling, by itself,

failed to preserve his claim of error. The reason for the

defendant's silence is obvious: the pretrial ruling was not

definitive, see supra note 4, and the defendant was therefore

obliged to object, on pain of forfeiture, when the government

sought to introduce the challenged evidence at trial. Because he

did not do so, his claim of error is forfeit.

Of course, even forfeited claims may be reviewed for

plain error. Puckett v. United States, 556 U.S. 129, 134-35

(2009). Here, however, there was no error, plain or otherwise.

4
"To be sure, there may be instances where a trial court's
ruling on an in limine motion, taken in context, is definitive
enough to excuse omission of an objection on the point at trial."
Freeman v. Package Mach. Co., 865 F.2d 1331, 1337 (1st Cir. 1988).
But to animate this exception, the pretrial ruling ordinarily must
be final, given "either [] the nature of the judge's words, or []
the rationale of [the] ruling, or [] both." United States v.
Holmquist, 36 F.3d 154, 166 n.12 (1st Cir. 1994). Here, the
pretrial ruling lacked finality; the district court explicitly
stated that it would reconsider its ruling "if the evidence as it
actually comes in" did not pass muster under Rule 404(b).

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 Even if the defendant had preserved his claim for review,

the district court did not abuse its discretion in allowing the

challenged evidence. While bad acts evidence may not be admitted

either to show a defendant's deplorable character or his propensity

to act in unattractive ways, such evidence is admissible to show,

among other things, his intent and the absence of mistake. See

Fed. R. Evid. 404(b).

The Supreme Court has explained that, in evaluating the

admissibility of Rule 404(b) evidence, a court initially must

decide whether the evidence submitted "is probative of a material

issue other than character." Huddleston v. United States, 485 U.S.

681, 686 (1988). To implement this directive, we have required

that Rule 404(b) evidence be shown to "have special relevance to an

issue in the case such as intent or knowledge." Varoudakis, 233

F.3d at 118 (internal quotation marks omitted). In evaluating this

showing, the timing of the proffered bad act and its degree of

resemblance to the conduct charged in the case are relevant

considerations. See id. at 119.

We hasten to add that special relevance is a necessary

but not a sufficient condition for the admissibility of Rule 404(b)

evidence. Such evidence also must pass through the filter of

Federal Rule of Evidence 403, which demands that the probative

value of the evidence must substantially outweigh any danger of

unfair prejudice. Fed. R. Evid. 403. This balancing is best

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performed by the trial judge, who has an intimate familiarity with

the ebb and flow of the case and with its nuances. When the trier

has determined that evidence satisfies Rule 403, "[o]nly rarely —

and in extraordinarily compelling circumstances — will we, from the

vista of a cold appellate record, reverse a district court's on-

the-spot judgment concerning the relative weighing of probative

value and unfair effect." Freeman v. Package Mach. Co., 865 F.2d

1331, 1340 (1st Cir. 1988).

The evidence in question here satisfies the foundational

requirements for Rule 404(b) evidence. The first benchmark is that

the finder of fact "can reasonably conclude that the act occurred

and that the defendant was the actor." Huddleston, 485 U.S. at

689. That benchmark is satisfied: the court below deemed the

proffered testimony credible, and the record casts no doubt on the

reasonableness of that finding. Although the defendant argues that

the evidence "was fragile and insufficient," he does not explain

how or why. Where the trial court sits as the factfinder,

judgments about witness credibility are ordinarily within its

exclusive province, see, e.g., United States v. Pontoo, 666 F.3d

20, 27 (1st Cir. 2011), and we discern no reason to depart from

that salutary principle here.

The next benchmark is likewise satisfied: the proffered

evidence was specially relevant. The defendant suggested that the

touchings were accidental, see, e.g., Raymond, 710 F. Supp. 2d at

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162, and the evidence tended to show the absence of mistake. In

other words, the testimony was not introduced to prove that the

defendant was a predator but, rather, to shed light upon his intent

during the July and August excursions. To cinch matters, the

events chronicled in the challenged testimony were not only

proximate in time, but also bore a strong resemblance to the

charged conduct.5

Last — but far from least — the challenged testimony

survives Rule 403 balancing. The defendant's intent was a critical

issue at trial, and the challenged evidence packed a punch on that

issue. Simply throwing dysphemisms at a piece of evidence does not

diminish its probative force, cf. Christian Recorder — Proverbs

(Mar. 22, 1862) ("Sticks and stones will break my bones, but words

will never harm me."), and the evidence at issue here was highly

probative.

The defendant laments the prejudicial effect of this

evidence, but he makes no showing of unfairness sufficient to

counteract its substantial probative value. The mere fact that

evidence is prejudicial does not trump the need for Rule 403

balancing: "By design, all evidence is meant to be prejudicial; it

5
The court below was sensitive to the importance of temporal
proximity and shaped its pretrial ruling accordingly. For example,
it excluded evidence of a 2005 incident involving other young girls
out of concern that the incident was "much more remote in time and
more likely to be used . . . as mere character or propensity
evidence, which is forbidden."

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is only unfair prejudice which must be avoided." United States v.

Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989) (emphasis in

original).

It is worth noting that the district court exhibited

commendable sensitivity to the potential for unfair prejudice. It

went to great lengths in an effort to establish a Rule 404(b)

equilibrium. For example, in ruling on the scope of testimony of

the defendant's character witnesses, the court indicated that it

would allow testimony by a parent that the defendant never touched

her child.

That ends this aspect of the matter. We conclude that

the defendant forfeited his Rule 404(b) claim of error; and that,

in all events, the district court did not abuse its discretion in

admitting evidence either of the bus trip or of the defendant's

inappropriate conduct with another underage girl.6

B. Cross-Examination.

The defendant's next claim of error is premised on the

notion that the district court improperly restricted his cross-

examination of Detective Chad Syphers (a government witness).

6
It is at least arguable that, in a bench trial, a district
court has wider latitude in the admission of Rule 404(b) evidence.
Cf. Gulf States Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th
Cir. 1981) (suggesting that "Rule 403's weighing of probative value
against prejudice . . . has no logical application to bench
trials"). Given the patent admissibility of the evidence
challenged here, we need not probe this point.

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Syphers was the officer who questioned the defendant in October of

2007. In that videotaped interview, the defendant made admissions

that the district court found telling. See Raymond, 710 F. Supp.

2d at 163. The defendant claims that the court improperly

truncated his cross-examination of this key witness and, thus,

foreclosed his opportunity to put the admissions in a less

unattractive light.

We review de novo the preliminary question of whether a

defendant, in conducting cross-examination, was afforded a

reasonable opportunity to impeach the witness. United States v.

Martínez-Vives, 475 F.3d 48, 53 (1st Cir. 2007). We review for

abuse of discretion any limitations that the trial court imposed on

that reasonable opportunity. Id.

A defendant's right to cross-examine adverse witnesses

has its genesis in the Confrontation Clause of the Sixth Amendment.

See U.S. Const. amend. VI, cl. 2; see also United States v. Ofray-

Campos, 534 F.3d 1, 36 (1st Cir. 2008). But the fact that the

right of cross-examination is anchored in constitutional terrain

does not give the cross-examiner carte blanche to ask whatever he

pleases whenever he pleases. A trial court possesses a

considerable margin of discretion to impose reasonable limits on

cross-examination. Martínez-Vives, 475 F.3d at 53. Once such

limits are imposed, they can be overturned on appeal only if the

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reviewing court finds them to be both unreasonable and prejudicial.

See id.

In this case, the defendant asseverates that Syphers

exhibited two different strains of bias: a belief that all sex

offenders act similarly, and a belief that all sex offenders

graduate from less serious to more serious offenses. These biases,

the defendant says, combined to create a coercive interview

environment that impinged upon the voluntariness of his videotaped

statements, and the district court unfairly hampered his inquiry

into this subject.

The record reflects that the district court allowed the

defendant free rein to inquire into the first strain of bias. But

when defense counsel asked Syphers about whether sex offenders

typically displayed a pattern of graduating from less serious to

more serious offenses, the court sustained an objection, reasoning

that the videotape of the interview was offered for the defendant's

statements, not for Syphers's state of mind. It is this ruling

that draws the defendant's ire.

The trial transcript makes manifest that the court

afforded the defendant a reasonable opportunity to cross-examine

Syphers. It gave the defendant considerable time and latitude to

pursue the question of bias. The resultant cross-examination was

both searching and far-flung. In particular, defense counsel was

permitted, both before and after the sustained objection, to ask

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about Syphers's interview technique. Based on this extensive

cross-questioning and on the videotape itself, the court expressed

an awareness that Syphers, in the course of the interview, "said

whatever he had to say to get the answer he want[ed]." Further

cross-examination hardly could have done more to expose the

witness's bias.

To say more on this subject would be to paint the lily.

Cross-examination does not present a defendant with an endless

opportunity to probe into an adverse witness's thoughts and

actions. Here, the trial court gave the defendant leeway to test

the witness's purported bias in a variety of ways. The fact that

the court did not yield to every entreaty of the cross-examiner

does not, without more, constitute an abuse of discretion. In this

instance, there was no "more."

C. Sentencing.

The defendant's final plaint is that the district court

erred in imposing a twelve-year incarcerative sentence. In the

defendant's view, the court should not have sentenced him to more

than the ten-year statutory minimum. See 18 U.S.C. § 2423(a).

Although the defendant's sentencing argument is not a

model of clarity, the prohibition on cruel and unusual punishment,

see U.S. Const. amend. VIII, is the dominant theme. We review

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Eighth Amendment challenges to imposed sentences de novo. United

States v. Polk, 546 F.3d 74, 75 (1st Cir. 2008).

A sentence comprises cruel and unusual punishment if it

is "grossly disproportionate to the underlying offense." Id. at

76. The threshold inquiry weighs the "gravity of the offense and

the harshness of the penalty." Solem v. Helm, 463 U.S. 277, 290-91

(1983). If this initial weighing does not reveal gross

disproportionality, the inquiry ends there, and a reviewing court

need not undertake a comparative analysis. See Ewing v.

California, 538 U.S. 11, 23 (2003). This is a daunting standard,

and "most efforts to demonstrate gross disproportionality will

fail." Polk, 546 F.3d at 77.

The defendant's sentence is not grossly disproportionate

to the offenses of conviction. The crimes were serious; they

involved the repeated touching for sexual gratification of an

eleven-year-old girl entrusted to the defendant's care and

supervision. Molestation of a young girl is not a trivial matter.

The punishment meted out by the sentencing court, though

severe, was not Draconian. The GSR (which the defendant does not

challenge) is 262 to 327 months, and the court sentenced the

defendant to a term of imprisonment substantially below the bottom

of this range. In these circumstances, we do not think that any

fair-minded person could consider a twelve-year sentence to be

grossly disproportionate.

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 Under the advisory guidelines, a sentence in a criminal

case must be substantively reasonable. United States v. Booker,

543 U.S. 220, 261 (2005); United States v. Clogston, 662 F.3d 588,

592-93 (1st Cir. 2011). We do not believe that the defendant has

developed an argument challenging his sentence under this standard.

In an abundance of caution, however, we have examined the sentence

for reasonableness. Based on much the same considerations as

discussed above, we conclude, without serious question, that the

sentence is substantively reasonable.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we uphold the defendant's conviction and sentence.

Affirmed.

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